Two Cheers as Unified European Patent regime enters the last lap

Discussions on a unified patent regime have been limping along for more than 30 years. Along the way new players have joined as the EU has expanded and others have dropped out – Spain and Italy left the field when Spanish and Italian were rejected as “official languages” for the project. A lot of progress has been made – a single application can now be made, many countries have agreed to limit the elements that need translation and general principles of substantive patent law have largely been agreed Europe wide. The end result however is still a bundle of national patents, subject to local regulation and which must be enforced in local courts. A truly single European patent should produce substantial savings and bring European patenting costs closer in line to those in the US which of course benefits from a single federal jurisdiction.

The last major area for agreement amongst those still in the game – for the project is now progressing under the “enhanced cooperation” scheme which allows projects to be pursued by those countries who are willing rather than requiring everyone to join in – was the location for a central court that would have jurisdiction over the new regime. Agreement was finally reached yesterday.

In a typical compromise the main court is to be in Paris – the location favoured by Council President Herman van Rompuy – with a specialist chemical and life science chamber in London and a mechanical engineering chamber in Munich. Appeal administration will also be handled in Munich. There are also to be regional courts. The idea seems to be that infringement cases will be taken locally while claims of invalidity or declarations of non infringement will have to go to the central courts however the details are still to be worked out. There was a proposal that appeals would go to Luxemburg but according to the Financial Times, UK Prime Minister, David Cameron seems to have fought off the idea of the ECJ taking on that role – a number of business groups had expressed concern at both the lack of specialist expertise in that court and the long delays in its handling of its current case load. The official press release from the Council meeting makes no mention of appeals.

So what happens next? There will be a largely meaningless vote next month in the European Parliament and then the individual countries will have to formally sign up to the proposal. It is planned that detailed legislation will be issued late this year which will give us a better idea of how the system will work and the proposed operating procedures of the courts.

A unified patent system should lead to cheaper applications and logic demands that a single patent requires a unified court system to ensure that it is enforced in the same way through out the Union however I remain to be convinced that there will be cost savings at the enforcement end. Although it will clearly be cheaper to go to one court rather than seek to litigate in multiple jurisdictions in reality I wonder just how many people are affected by that? Generally a case is pursued in one court and then if the same parties are involved in the same dispute in other countries they would seek to negotiate a settlement – how will the new courts cost out against that approach?